End-of-Life Issues Raised by Candidates

Dear Mr. Premack: I am one of your dedicated senior readers. I heard the debate between the four Republican candidates for lieutenant governor, and am wondering how their comments about changing the artificial life support law in Texas might affect me? – NL

Artificial life support has been in the news a great deal in the last few months with the Jahi McMath matter in California and the Marlise Munoz matter in Texas. According to the Associated Press, during the debate among Republican candidates for Texas lieutenant governor last week (Jan 27) all the candidates said the federal Judge in the Munoz matter erred in his interpretation of Texas law. All the candidates called for changes to Texas law so that a similar outcome – allowing support machines to be withdrawn – would be banned in Texas in the future.

According to reports, Mrs. Munoz was a young wife and mother, and was about 16 weeks pregnant when she likely had a blood clot. She was hospitalized and placed on life support. The doctors declared in November 2013 that she was brain dead. Her husband and parents agreed she would not want to be kept alive, and the doctors said that the fetus was “distinctly abnormal”. The hospital decided it could not remove life support because she was pregnant. The federal court ruled that support machinery should be removed, and it was removed on Sunday January 26, 2014.

The Texas Advance Directives Act requires that “A person may not withdraw or withhold life-sustaining treatment … from a pregnant patient.” The Act further states that “life-sustaining treatment” means treatment that, based on reasonable medical judgment, sustains the life of a patient and without which the patient will die.

Under section 671.001 of the Texas Health and Safety Code, a person is dead when, according to ordinary standards of medical practice, there is irreversible cessation of the person’s spontaneous respiratory and circulatory functions. What if artificial means of support are in place and preclude a determination of respiratory and circulatory cessation? In that case, a person is legally dead when the physician declares that according to ordinary standards of medical practice there is irreversible cessation of all spontaneous brain function. After the pronouncement of brain death, support machines are turned off.

Mrs. Munoz was ruled brain dead in November, yet the hospital said the law forbid them to withdraw life support because she was pregnant. Legally, from the moment she was declared brain dead she was no longer on life support. Life support is a treatment that sustains the life of a patient and without which the patient will die. When the patient is already dead, the machines are not sustaining the patient’s life. Hence, in brain death turning the machines off is not withdrawal of life support. As the Judge said, “Mrs. Munoz is dead” and continuing support machines would not have changed the outcome for her or for the fetus.

If the facts had been different, the hospital may have been legally required to sustain the life support. If Mrs. Munoz was in a persistent vegetative state with brain activity but was unable to breathe on her own, Texas law would require life support until the pregnancy ended on its own or there was a live birth. This law was passed by the legislature and was signed by then-governor George W. Bush. Some feel this law already goes too far in imposing the state’s will onto individuals, and now, according to the candidates for lieutenant governor, some feel it does not go far enough.

The death of Mrs. Munoz and the end of her pregnancy was not a choice. The woman’s death was tragic; she was ripped from a family that desired her and the second child to stay alive. Voters courted by the candidates must ask themselves if the candidates’ demand to change the law is just a crass and transparent appeal to take advantage of the voters’ religious bias for political gain.

To change the outcome in the Munoz matter, the candidates must advocate changing the definition of brain death or they must advocate defining life as beginning at conception. There are distinct scientific and constitutional problems associated with either of those positions. If changes to the law are justified, those changes should have a sound scientific basis, should require a substantial state interest to be at risk before the state interferes with individual liberty, and should uphold rights reserved to the people under the US Constitution. Religious justifications alone are insufficient.

How does this debate affect seniors? Although the Munoz case dealt with pregnancy, candidate Dan Patrick stated that “Regardless of the circumstances surrounding that life, we should always do everything to protect that life.” Will these candidates, in the guise of protecting life, try to restrict seniors’ legal right to make their own end-of-life decisions? Think about these issues before you vote. Further, meet with your Elder Law attorney to be sure your own Advance Directives comply with existing Texas law so your own end-of-life preferences will be honored.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, February 3, 2014

When is the end of the road really the end? The politicians would decide for you, but you should be allowed to make your own choices. / Photo (c) 2014, Paul Premack